Extreme Ninth Circuit Concealed Weapon Decision Out Of Sync With Other Courts

Last updated February 14, 2014.

California has some of the strongest gun laws in the nation and these strong laws have had a significant role in keeping Californians safe. Over the past twenty years, California’s gun laws have contributed to a significant—56%—drop in California’s gun death rate. However, a radical Ninth Circuit Court of Appeals decision has put one of the state’s key laws in jeopardy. Yesterday, two conservative judges issued a decision that could potentially undermine a decades old law allowing law enforcement to have discretion over who is allowed to carry a hidden, loaded gun in public.

This law, like laws in several other states across the country, only allows law enforcement to issue a permit to carry a concealed loaded gun in public if the applicant can demonstrate “good cause” for the issuance of a permit—commonly called a “may issue” permitting system.

In California, counties can define “good cause” differently, and many require applicants to show that they are at a special risk of being targeted by criminals that is greater than the general population in order to demonstrate “good cause.” In this case, Peruta v. County of San Diego, the plaintiffs claim that the Second Amendment requires counties to issue permits to anyone who applies who claims a general need for self-defense, regardless of whether they have a special risk.

Since the controversial 2008 Supreme Court decision District of Columbia v. Heller, the gun lobby has flooded the courts with similar claims, which have nearly all been rejected. In fact, cases challenging similar “may issue” systems in New York, Maryland, and New Jersey have been rejected by three different federal appellate courts. In yesterday’s decision, however, two judges on a three judge panel of the Ninth Circuit decided that California’s good cause requirement must be interpreted to allow anyone who claims a general desire for personal self-defense in public to be issued a permit, contrary to other circuits’ decisions on this issue.

This decision is a drastic departure from other Second Amendment cases in two key ways. First, although these two judges acknowledged that the Heller decision did not “speak explicitly to the scope of the Second Amendment right outside the home,” they decided for themselves not only that the right does extend beyond the home, but that it completely prohibits states from having virtually any say over who is allowed to carry a loaded concealed gun in their community. This is in stark contrast to the other courts which recognized that guns in public have been closely regulated throughout the nation’s history in order to preserve public safety.

Second, virtually every other Second Amendment decision since Heller—on this topic and others—has considered the innumerable public safety benefits of strong gun laws before deciding whether those laws violate Second Amendment rights. Indeed, even the Ninth Circuit itself considered this balance in late 2013 when it upheld a law prohibiting domestic violence abusers from owning firearms. The two judge majority in the Peruta case choose to ignore that precedent and the approach of other courts nationwide and, instead, adopted a radical theory proposed by the gun lobby that invalidates almost any law that burdens Second Amendment rights at all, regardless of the law’s public safety benefits.

The good news is that the fight over who can carry concealed weapons in California is still in motion. The gun lobby will claim victory—they need one after all the court defeats they have suffered recently—but this “victory” will probably be short lived. Federal courts of appeal, like the Ninth Circuit, are composed of a large group of judges. When an appeal is first reviewed, it is heard by a randomly selected group of three judges—like the three judges who heard this case. After a decision is issued by a three judge panel, the losing party—in this case San Diego County—has the option of requesting that the Ninth Circuit review the case with a larger group of eleven judges, called “en banc” review. Although en banc review is not usually granted, it is often used to review broad, important rulings, particularly ones—like this one—that drew a dissent from one of the original panel members.

California’s counties do not have to comply with the ruling yet. Fortunately, until the Ninth Circuit has had a chance to consider whether to grant en banc review, law enforcement in counties across California will be able to exercise discretion over who in their communities can carry concealed, loaded guns in public.

If a larger group of judges does review this case, they will likely be more inclined to uphold California’s reasonable “may issue” concealed carry law—just as the other appellate courts have done with similar laws.